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[shidodi5]

US patent-A has a granted method claim-1, and I come out to the market with a device that may if used in a certain manner (that is determined by the client using the device) infringe method claim-1 of patent-A.

Do  I have "freedom to operate" with my device in the US ?

[khazzah]

US patent-A has a granted method claim-1, and I come out to the market with a device that may if used in a certain manner (that is determined by the client using the device) infringe method claim-1 of patent-A.

Do  I have "freedom to operate" with my device in the US ?

I notice that you used the term of art "freedom to operate". I'm sure you know you're not going to get a freedom to operate opinion here on this forum. To start with, you're not my client. So I'll assume you're asking for general information, as is commonly given here.

First let me be sure I understand your question.

I think you are describing a device that has two "modes", a non-infringing mode and an infringing mode. The choice of mode is under end-user control. Your real question is this: is an end-user a direct infringer when operating the device in its infringing mode?

Did I translate your question accurately? 

One more thing: is this a computer/electronics device?

[shidodi5]

Karen,

Thanks for your response.

The device is a medical device.

You are correct in your translation of the question.

Firstly, I would like to learn if there is a chance that I the producer and developer of the device may be in any scenario considered as an infringer ?

Secondly, I would like to learn if there is a chance that a customer of mien that uses the device may be an infringer ?

[Isaac]

Firstly, I would like to learn if there is a chance that I the producer and developer of the device may be in any scenario considered as an infringer ?

Secondly, I would like to learn if there is a chance that a customer of mien that uses the device may be an infringer ?

Your customer would be an infringer whenever he used the device in the infringing manner.   Producing the device would not make you a direct infringer unless you also used/tested the device in the infringing manner.

More difficult to answer is whether you would be liable for some type of indirect infringement (induced/contributory infringement) based on your customers infringement.   Your scenario is too vaguely expressed for an answer other than maybe. 
 

[khazzah]

Your customer would be an infringer whenever he used the device in the infringing manner.   Producing the device would not make you a direct infringer unless you also used/tested the device in the infringing manner.

More difficult to answer is whether you would be liable for some type of indirect infringement (induced/contributory infringement) based on your customers infringement.   Your scenario is too vaguely expressed for an answer other than maybe. 

I concur with Issac's analysis, which is accurately and concisely expressed (as usual).

The original question asked specifically about a method claim, so I don't know whether there is a device/apparatus/system claim too.

The analysis for these types of claims is slightly different. Depending on exactly how the claim is written (and interpreted), *sale* of a *product* with non-infringing mode and infringing mode may be direct infringement.

[blakesq]

One thing you should consider is that medical procedure method claims usually cannot be enforced against a medical practitioner.

Karen,

Thanks for your response.

The device is a medical device.

You are correct in your translation of the question.

Firstly, I would like to learn if there is a chance that I the producer and developer of the device may be in any scenario considered as an infringer ?

Secondly, I would like to learn if there is a chance that a customer of mien that uses the device may be an infringer ?

[khazzah]

The device is a medical device.

One thing you should consider is that medical procedure method claims usually cannot be enforced against a medical practitioner.

Ooh, good catch, blakesq!

So if you have a method-of-use claim for a medical device, you really need to go for contributory/induced against the manufacturer?

[MYK]

One thing you should consider is that medical procedure method claims usually cannot be enforced against a medical practitioner.

Curious to know more about this.  Is it because the practitioner is required to treat patients according to his/her professional judgment, or something along those lines? or is it just a practical matter of not being able to track down such uses (e.g., off-label use of drugs)?

[Isaac]

Curious to know more about this.  Is it because the practitioner is required to treat patients according to his/her professional judgment...

That's pretty much it.  Allowing suits for medical practitioners that treat patients presented moral issues and Congress passed a statute eliminating the legal liability.  See 35 USC 287(c).